State v. Balize

38 La. Ann. 542

• Court: Supreme Court of Louisiana
• Decided: May 15, 1886
• Docket: No. 9658
• Status: Published

Opinions

■ On Motion to Dismiss

The opinion of the Court was delivered by

Watkins, J.

This appeal is prosecuted from a judgment of forfeiture of an appearance bond, bearing date1' 30th of July, 1885; whereon “Alexander Balize as principal and Tim Duggan’ as -security -on'said bond, are adjudged to pay in solido tlie sum of one hundred dollars to the State.

In this Court a motion is made to dismiss the appeal upon the ground:

1st. That the appeal was taken before the judgment was signed.

2d. That it was not made returnable within ten days after the order of appeal was granted; and was not made returnable to this Court when it was then sitting, through the fault of the appellant.

1st. The record discloses that the judgment nisiwas rendered on "the 16th of June, 1885, forfeiting the bond; on the 8th of July following the order of appeal was granted in the following words, viz:

“In this case, on motion of defendant’s counsel, on forfeited bond, it was ordered by the court that defendant be allowed a suspensive appeal from the judgment of this court, by his furnishing a bond in an amount according to law, returnable before the honorable, the Supreme Court of the State of Louisiana, in New Orleans, on the second Monday of February, 1886.”

The judgment of forfeiture was signed on the 20th of July, 1885, and it is commenced with the words: “This case was this day called up and defendant, Alexander Balize, failing to appear and answer, etc.”

The minutes of the court, the order of appeal, and the judgment itself, fully demonstrated its error, and that the judgment was actually rendered on the 16th day of June, 1885, and during same term of court.

In State vs. McKeown, 12 Ann. 596, the Court said: “We are of opinion that this motion ought not to prevail. It is usual in the country to apply for an appeal before the judgment is signed. Tne appeal is considered as being takeu mine pro tune.” 23 Ann. 705; 15 Ann. 521; 25 Ann. 497.

We approve that ruling.

2d. It will appear from the minutes of the court above quoted that the appeal was not made returnable within ten days after the order of ■apj)eal was granted; and the question to be determined is whether :same was attributable to the appellant or not.

This is a criminal case in the sense of Act 30 of 1878. State vs. Cassidy, 7 Ann. 276; State vs. Williams, 37 Ann. 200.

In State vs. Jenkins, 36 Ann. 866, this Court said: “The return day fixed wa» in gross violation of Act 30 of 1878, which requires appeals in criminal cases to be made returnable within ten days after granting the order of appeal, whenever the Supreme Court may be in session on "the return day.”

“The error is unquestionably fatal to the appeal unless saved by the provisions of Act 53 of 1836, now section 360 of Revised Statutes, which provides in substance, that such error shall not occasion the dismissal of the appeal unless imputable to the fault of the appellant.”

In that case the counsel for the accused prepared and signed a written-motion of appeal, iu which was suggested the improper return day,, and the appeal was granted as prayed for in the motion.

It is the settled jurisprudence that when the appellant suggests an improper return day, and the judge granting the order of appeal, adopts-the appellant’s suggestion and fixes the return day accordingly, the error is attributable to the appellant, and the appeal will be dismissed. State vs. Jenkins, 36 Ann. 866; State ex rel. Lee & Co. vs. Allen Jumel, 35 Ann. 980, and cases therein cited; Wooten vs. LeBlanc, 32 Ann. 692.

We find in the brief of appellee’s counsel the suggestion that the sessions of this Court at Shreveport and Monroe have transpired since this appeal was granted, and that the appellant has ignored same.

In quite a similar case this Court held that, “an appellant should not bo prejudiced bjr an error committed by the judge in fixing the return day of appeal,” quoting with favor Chaffe vs Haynor, 31 Ann. 595.

In that case the Court said: “It is alleged herein that the defect is imputable to the appellant, because the motion is written by Ms attorney and the day is fixed therein, and the judge merely adopted the day thus fixed. An order of court, whether written by the attorney of one of the litigants, or by the clerk, is the act of the judge. s * * It was the judge who made the order of appeal, and who named an improper day for its return, and the appellant cannot be prejudiced by the act.

This record discloses no written motion of appeal prepared by the-counsel for the accused. The minutes of the court recite: “In this case, on motion of defendant’s counsel on forfeited bond, it was ordered' by the court that defendant be allowed suspensive appeal, etc.”

Clearly, it was the judge who made the order of appeal, and not the counsel of the accused who suggested it, and the motion to dismiss the-appeal is denied.